Your request, reference 202100222206
1. Each quarterly report compiled by Deloitte and delivered to the Scottish Government around the Lochaber guarantee from September 2016 to the date of this request
Your review request, reference 202100230000
I believe the public interest test has been incorrectly applied in this case and should be in favour of disclosure of the information in the documents rather than redaction. This is due to the substantial public interest around the GFG Alliance deal at Lochaber and the multi-million pound guarantee entered into by the Scottish Government. Enough time has passed for the vast majority of these reports to no longer be commercially sensitive.
While the information may be of a commercial nature, it is not necessarily commercially sensitive any more and in any case would not create substantial prejudice.
I have been asked to look at your request afresh, to decide whether the original response should be confirmed, with or without modifications, as appropriate, or that a fresh decision should be substituted. I can confirm that I was not involved in the handling or decision-making around the original response.
I have considered this case again, and I have conducted a comprehensive review of the response, and the reasons behind withholding the requested information. I have also reapplied the public interest test and reassessed damage that may be caused from release of the redacted passages.
I have concluded that the original decision should be confirmed with modifications.
I have determined that some of the information previously withheld under section 33(1)(b) (commercial prejudice) was incorrectly withheld and can now be disclosed, due to the lapse in time and the diminishing the effect of the commercial damage that would be caused. I have attached this information as separate documents.
have also determined that some information remains exempt under section 33(1)(b). Having engaged with the relevant Scottish Government policy officials I am content that this information, if released, would be likely to significantly damage or weaken GFG Alliance’s ability to carry out its operations both in Scotland and elsewhere and would also be unfairly advantageous to its competitors. Although there has been a lapse in time since these reports were initially produced, as you have pointed out, the financial information contained summarises unaudited accounts for the relevant periods provided to the Scottish Government by the GFG Alliance. This information includes details on financial performance relative to budget and is not currently in the public domain. The earliest reports are from 2019 and regardless of the lapse in time Scottish Government officials maintain that the information withheld would give customers, competitors and other interested third parties insight into the performance and assets of the company along with the wider Group and would negatively affect the operations of the business - preventing them from achieving best value for money. For example, there is information contained that indicates seasonality of the business, which is not diminished over time and this would be used by potential customers and suppliers when negotiating pricing.
As you are likely aware, the GFG Alliance is currently in active refinancing and restructuring negotiations with potential creditors worldwide. The refinancing and restructuring exercise being undertaken by the company is clearly a critical process for the businesses and any negative influence on this caused by release of such information at this time could harm both GFG, and the Scottish Government as a key financial stakeholder.
I would now like to address the point you raise on the application of the public interest test. We recognise that there is a public interest in favour of disclosing the information in order to provide openness and transparency in how public money has been spent, and to ensure that Scottish Ministers are held to account for its spending and for achieving value for money for the tax payer. However, there is a greater public interest in protecting the commercial interests of GFG, both in its negotiations with creditors and suppliers, and its competitiveness against its competitors in the future. GFG employs 35,000 globally and more than c.300 staff directly in Scotland. Given GFG’s well publicised challenges, many individuals will be affected by the success (or otherwise) of GFG’s refinancing and restructuring process. Information provided to Scottish Government officials for a specific purpose, if released into the public domain, could negatively influence this process, which could be detrimental to GFG, its employees and its supply chain, which would not be in the public interest. In addition, due to the level of financial involvement the Scottish Government has with GFG over the period of the guarantee, coupled with the company’s importance in Scotland for industry and jobs, releasing this commercially sensitive information into the public domain could impact upon GFG’s future, as well as affecting the Scottish Government’s position in future relationships with commercial organisations seeking advice or support from us. It would also prejudice the Scottish Government’s ability to negotiate terms with commercial organisations, which would not be in the public interest. On balance we therefore consider the public interest in release of the information is considerably outweighed by that in withholding the information. This can be illustrated in the damage to the company in question that would in fact be caused and also detrimental to the taxpayer.
Similarly, I have reviewed all of the information previously withheld under section 30(b)(ii) (free and frank exchange of views for the purposes of deliberation), and have concluded that the exemption did not apply to some of that information, which I have now attached. However, I have also concluded that section 30(b)(ii) was applied correctly to some of the information being withheld.
This exemption recognises the need for Ministers and officials to have a private space within which to seek advice and views from external stakeholders before reaching the settled public position or accepting a recommendation. Disclosure of the advice and recommendations provided to Scottish Government officials and Ministers by Deloitte in these reports would, or would be likely to, inhibit substantially the free and frank provision of such advice and exchange of views for the purposes of deliberation now and in the future, because they will be reluctant to provide their views fully and frankly if they believe that those views are likely to be made public, particularly given the ongoing difficulties that the company are now facing and the importance of the Lochaber smelter, both to the local economy and Scotland as a whole. The issues advised on in the reports are still ongoing as the project is progressing and final decisions have not yet been taken. This advice relates to sensitive issues and strategic decision-making related to the project and disclosing the recommendations or advice provided would negatively impact, weaken or damage the position of Scottish Government as an interested party and would not achieve best value for money as a result.
Taking account of all of the circumstances of this case I have considered if the public interest in disclosing the information outweighs the public interest in applying the exemption. I have found that, on balance, the public interest lies in favour of upholding the exemption. We recognise that there is a public interest in disclosing information as part of open, transparent and accountable government, to inform public debate and give clarity over how public money is being spent. However, there is a greater public interest in allowing Ministers and officials a private space within which to communicate with appropriate external stakeholders as part of the process of exploring and refining the Government’s position until the Government as a whole can adopt a decision that is sound and likely to be effective. Premature disclosure of this type of information, while the project is still ongoing and where events are yet to unfold could lead to a reduction in the comprehensiveness and frankness of such advice and views in the future when required, meaning that Ministers would be less informed when making significant decisions, which would not be in the public interest.
Due to the size of the files we are unable to upload the documents referred to above. If you wish to consider, please contact us at the address below and we will be happy to provide.
The Scottish Government is committed to publishing all information released in response to Freedom of Information requests. View all FOI responses at http://www.gov.scot/foi-responses.
Please quote the FOI reference
Central Enquiry Unit
Phone: 0300 244 4000
The Scottish Government
St Andrews House
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